SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PERRE
[2019] SASCFC 100
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Doyle)
14 August 2019
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - PRE-TRIAL PUBLICITY
CRIMINAL LAW - PROCEDURE - JURIES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
This is an application for permission to appeal against a decision of the District Court to refuse to grant either a temporary or permanent stay of the prosecution of the application for offences under the Controlled Substances Act 1984 (SA) and the Firearms Act 1977 (SA).
For over 20 years, the applicant has been the subject of adverse media publicity concerning various criminal proceedings against him, and his alleged connection to organised crime. In particular, the applicant has been reported as a suspect in the 1994 bombing of the Adelaide offices of the National Crime Authority (NCA), which resulted in the death of Detective Sergeant Jeffrey Bowen and serious injury to solicitor Peter Wallis. The applicant submits that no safeguard can alleviate the prejudice arising as a result of this media publicity.
Held, per Parker J (Nicholson and Doyle JJ agreeing), granting permission to appeal but dismissing the appeal:
1. The Judge did not fail to take into account all relevant documents contained in Exhibit JN2 (which contained the published material upon which the applicant relies) (at [82]).
2. In refusing to grant a permanent stay, the Judge correctly stated the relevant principles expressed by Doyle CJ in R v McGee and by the High Court in R v Glennon (at [40], [44], [84]).
3. The adverse publicity received by the applicant is far removed from being an extreme or exceptional case of the type referred to by the High Court in R v Glennon and in Jago v District Court of New South Wales (at [91]-[97]).
4. The Judge was correct in the confidence he expressed in the operation of the jury system (at [98]).
5. The procedural steps surrounding the selection of the jury and the directions canvassed by the Judge should be more than sufficient to ensure that, notwithstanding the prejudice arising from the published material, the applicant will receive a fair trial and that there will not be an abuse of process (at [99]-[100]).
6. The Judge did not err in refusing to grant a permanent or temporary stay of the prosecution (at [101]-[103]).
Criminal Procedure Act 1921 (SA) ss 112, 157; Controlled Substances Act 1984 (SA) ss 32, 33B; Firearms Act 1977 (SA) ss 11, 29A; Juries Act 1927 (SA) ss 6A, 7; Sentencing Act 2017 (SA) s 47, referred to.
R v McGee (2008) 102 SASR 318; R v Glennon (1992) 173 CLR 592; Jago v District…
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- AGLC
- R v Perre [2019] SASCFC 100
- Case
- [2019] SASCFC 100
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Full Court was whether the judge had erred in refusing the application for a temporary stay of proceedings. This involved considering the potential impact of historical and internet-published media reports on the applicant's right to a fair trial, particularly in light of the availability of recorded evidence and police witnesses, and the implications for co-accused.
The Court reasoned that while some internet material could remain accessible, the risk of juror influence from historical newspaper articles, particularly those with limited circulation in South Australia and published decades prior, was not significant. Furthermore, the Court noted that any potential prejudice from online material could be addressed by judicial directions to jurors not to conduct independent research. The Court also considered that granting a stay would either necessitate severing the applicant's trial from his co-accused or substantially delaying their proceedings, which was not considered to be in the applicant's best interests. The judge's decision was found not to be so plainly unjust or unreasonable as to indicate error.
Consequently, the Court granted permission to appeal but ultimately dismissed the appeal, upholding the original decision to refuse the temporary stay of proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
While the respondent acknowledges that the fading of witness memory will not be significant due to the substantial reliance on recorded evidence and police witnesses, it must also be recognised that there are other defendants. The grant of a temporary stay would either result in the severance of the applicant’s trial from that of his co-accused, or the delay of their trial for a substantial time. In these circumstances, the respondent submits that it is not to the benefit of the applicant to delay the resolution of the present charges. Accordingly, the respondent submits that it was open to the Judge to refuse the application for a temporary stay. It cannot be said that the decision is so plainly unjust or unreasonable as to indicate error. Permission to appeal should also be refused on ground 3.ConsiderationGround 1 I agree with the conclusion of the Judge that a significant part of the material included in JN2 is irrelevant to the stay application. I refer to the material I have mentioned at [18] to [19] above. I do not regard it as realistically possible that a potential juror could be influenced by material published some 20 to 25 years ago in interstate newspapers that had little or no circulation in South Australia. I also do not consider that there is a significant risk that a potential juror might be influenced by articles that did not name the applicant nor indirectly identify him.[40] [40] See [20] above. The exhibit JN2 includes some material published on the internet. As may be expected, that is primarily the case with the more recent material. This material has been extracted from newspaper websites and many, if not all, of the articles would also have been published originally in print form. In the latter circumstances, the internet material is no different to hard copies. However, a great deal of material published on the internet may remain accessible long after the original publication to anyone who chooses to conduct an appropriate search.[41] Thus, there is a risk that a juror might conduct their own online research. That risk is appropriately dealt with by the Judge’s proposed direction that jurors are not to conduct their own research. [41] In some instances, access may be limited to paid subscribers. I do not accept the contention by the applicant that the Judge had failed to take into account all relevant documents contained in JN2. His Honour specifically stated at two points in his judgment that he had read all of the material contained in JN2 and taken it into account. He also made the same observation at the commencement of submissions. Quite apart from those statements, it is also quite clear from his Honour’s reasons that he did not limit his consideration to the 21 or 22 documents specifically identified by the applicant. Because the matter was reasonably arguable, I considered that permission to appeal on ground 1 should be granted. However, I concluded that ground 1 should be dismissed for the reasons set out in the preceding paragraphs.Ground 2